Monday, February 15, 2016


Tom Goldstein of SCOTUSblog is a very bright guy, but I don't think he understands American politics the way he understands the Supreme Court. He's written two posts predicting President Obama's High Court pick. In the first one, published yesterday morning, he argued that Ninth Circuit judge Paul Watford was Obama's likely choice. Watford is African American; Goldstein thinks Obama will want to appoint a black judge to the Court. Goldstein also thinks -- please make note of this -- that the Obama administration will want to "pick a nominee that fulfills both its jurisprudential and political goals, without giving Republicans a tool with which to fight back to persuade undecided voters."

By Sunday afternoon, Goldstein had declared the Watford post "superseded" and published this post, in which he offered what I presume is his final prediction:
... at this point I think that Attorney General Lynch is the most likely candidate. I think the administration is likely to nominate her....
Loretta Lynch? Seriously? Goldstein thinks Obama could nominate her "without giving Republicans a tool with which to fight back to persuade undecided voters"?

I'm not saying that Lynch ought to be controversial. I'm saying that the Republican demonization machine would go into overdrive if Lynch were Obama's pick, even though she won confirmation as attorney general in a Republican-controlled Senate just last year. She's already one of the right's favorite Antichrists, neatly replacing her predecessor at the Justice Department, Eric Holder. A Lynch pick would set off so much anger on the right that mainstream journalists would take the conservative howling and feces-flinging very, very seriously. Eventually the low-information public would conclude that there must be something awful about Lynch because she makes so many people so angry.

So what is it that conservatives don't like about Lynch?

The loudest howls of outrage came after she gave a speech in December to a group caled Muslim Advocates, in which she said:
Now obviously this is a country that is based on free speech, but when it edges towards violence, when we see the potential for someone to lift -- lifting that mantle of anti-Muslim rhetoric or, as we saw after 9/11, violence against individuals who may not even be Muslims but may be perceived to be Muslims and they will suffer just as well, just as much. When we see that, we will take action....
It seems clear to me that she means that the Justice Department will look into heated rhetoric when it constitutes an overt threat or when it seems to be a sign that the speaker intends to act in a violent way. But the right didn't see it that way:

Ted Cruz (who, as Goldstein notes, is likely to lead the charge against any Obama nominee) said this:
Loretta Lynch told a gathering the day after the San Bernardino attack that her department would move to prosecute anyone whose, quote, "anti-Muslim rhetoric," quote, "edged towards violence." The day after a terror attack, 14 innocent lives snuffed away. As has been the case all too often in the Obama administration, we may be facing once again the weaponization of one of our own government agencies, deployed not to protect Americans, but to force them to submit to the Obama administration's code of what is and is not acceptable speech.
Former congressman Joe Walsh, who's now on talk radio, dared Lynch to incarcerate him:
“I think Islam has a real freaking problem, alright?” Former Illinois Rep. Joe Walsh said in a video posted to his Facebook page. “There is a cancer in Islam, and if they’re not going to learn to assimilate, I don’t want them in this country.”

“You got a problem, Loretta Lynch, with me saying that? Then throw me in jail,” Walsh, a conservative talk show host, argued. “I think Islam is evil. I think Islam has a huge problem. I think most Muslims around the world are not compatible with American values. I don’t want them here.”
You'd expect that from Walsh, who's a professional loudmouth. But what about this sleepy old guy?

In a Q&A after the same speech, she said something else that infuriated the right. Here's the Daily Caller story:
Speaking to a Muslim advocacy group on Thursday, Attorney General Loretta Lynch urged Muslim parents to contact the Justice Department and the Department of Education if their children are bullied at school.

“Other areas in which we are seeing growing areas of concern...specifically involve our children, and the issues of bullying and the schools,” Lynch said during a question-and-answer session at an event hosted by Muslim Advocates, a civil rights organization....

To address what she said is a growing problem of bullying of Muslim kids, Lynch urged parents to contact the federal government.

“If you are aware of situations where children are involved, please contact the Department of Justice and the Department of Education,” Lynch said. “We can provide guidance, we can have conversations.”

“Everything need not result in a lawsuit, but some things do have to go to that area,” Lynch said....

The right might bring up the Lynch Justice Department's investigation of the Baltimore Police Department and her meeting with Black Lives Matter leaders (even though she's also denounced attacks on police officers). The right might even dredge up this story, despite the fact that it's from the discredited GotNews:
Attorney General nominee Loretta Lynch belonged to a student group that brought Jew-hating Palestinian terrorists to Harvard Law School every year she was a member.

Lynch belonged to the Harvard Black Law Students Association (BLSA) from 1981-1984 when she was a student.

During those years the radical black group brought representatives from the Palestinian Liberation Operation (PLO).

The group’s leader, Mohammed Kenyatta, called for the “liberation of Palestine” and expressed support for the terrorist organization.
Mohammed Kenyatta! If you wanted to make up a name that would infuriate and terrify old white conservatives, you couldn't do better than that, unless you made it "Mohammed Kenyatta X."

Goldstein predicts -- correctly, I think -- that no nominee will be approved. He believes Obama will choose someone who'll get a vote and be rejected on party lines; a second pick will be slow-walked, after which the Senate will say there's no time to get through the vetting and voting.

Nevertheless, Goldstein believes Obama's first pick will seem too safe to be denied a vote. But that can't happen to Lynch. The right would turns her into a grotesque caricature with ridiculous ease.


sdhays said...

I just don't see the incentives for Republicans to give any Obama nominee a vote. I think he could nominate Orin Hatch and they'd still tell him to F-off. Giving Obama a vote validates that he has the right to nominate a replacement for Scalia, and then can make independents confused and Democrats upset when they reject the nominee. Why bother with all of that?

AllieG said...

1. Obama unlikely to nominate Lynch because he needs full-time Attorney General. He won't get another one. If nominated, wouldn't she have to step down from Justice for conflict of interest reasons?
2. It's far more in his and his party's interest to nominate some judge Republicans have already voted to confirm previously, making it clear even to the Dana Bashes of the world that this is just a power grab by Republican Senate.
3. Don't bother responding, I know the latter won't happen. CNN has become news for crabby old white people who aren't quite as old as Fox viewers.

Victor said...

If Obama nominated Jesus himself, the conservatives would bitch that he was a Commie peacenik, who, by the miracle of the loaves and fishes, was also championing Welfare and free hand-outs for the poor, instead of rugged individuals pulling themselves up by their own bootstraps.
And he hates the rich Job Creators.

In short, they'll take George Wallace's old line about segregation, and change it to, 'Obstruction today. Obstruction tomorrow. Obstruction forever - or, at least as long as there's a Democrat in the OVal Office.'

Feud Turgidson said...

There are 54 Republican U.S. Senators. Each is an individual elected and serving in a unique context. Message consistency and vote uniformity have been hallmarks of the Senate Republican Caucus for most of the last 35 years, but in this presidential cycle we're seeing how fragile is the former. I don't get how so many assume that the latter, uniform vote discipline, also can't be taken for granted; nor, more broadly, do I think any of us can predict the future, even over the time before the coming election.

Of the 34 U.S. senate seats up for election this cycle, 24 are currently held by at least a nominal Republican. I say "nominal" because on of them is Lisa Murkowski, who has already proven her ability to be elected without formal RNC support and against TeaPster and freedumber sentiment.

Other unique individuals in unique contexts: McCain, Boozeman in Arkansas - formerly Clinton territory, Kirk in Illinois, Vitter retiring in La., as noted Ayotte in NH, Burr in NC, Portman in Ohio, Toomey in Pennsylvania, and Johnson in Wisconsin. The Ds only need to move 4 of 24, or 4 of those 9, for a straight up vote.

IMO it looks bad, but beyond how it looks from here, the future, even the near future, cannot be foretold with the sort of certainty being expressed here and elsewhere, especially in what has been so far, even among presidential year national election cycles, exceptionally weird.

Leo Artunian said...

To supplement Feud Turgidson's point: For all those attempting to foretell the future, how many of you anticipated Friday noon having this discussion Monday morning?

mlbxxxxxx said...

The Senate is in recess until the 22nd or 23rd. Obama could, and imo should, decide on his nominee quickly and appoint that person as a recess appointment in the next few days. Then let the Senate decide to accept or reject his nominee as she/he sits on the court for the remainder of this Congress. Make it a pick that would be difficult to reject (i.e., not Lynch) and let the GOP stew in its juices.

Never Ben Better said...

I agree with AllieG.

Charon04 said...

Except Obama has already said he will name someone after recess ends.

Obama will play this as straight-arrow as possible, in order to contrast with how Pubs behave

Ten Bears said...

I think that's exactly right: straight arrow, as publically by the book as can be. Like the loons that took over the bird sanctuary in my back yard last month, these bozos are doing themselves far more harm than good.

Ten Bears said...

I would add that while a recess appoint is my first choice handing the Senate a nominee on the twenty-second ranks right up there.

Buford said...

Didn't PBO appoint another Justice? and she was confirmed?...Ok then, It is ok for our President to do it again...I haven't heard of any rule changes that he can't appoint another Justice...or is that what I am hearing from the Koch/Republican Party, that they are changing the rules as we go...or trying to...

Unknown said...

Lynch would not be a good pick because she would probably have to decide herself on any cases where the Justice Dept was involved.

Unknown said...

Spell check... Make that recuse herself

Dark Avenger said...

The original text of the Constitution is lacking a no backsies clause when it comes to lame-duck Presidents, the last time I checked.

Yastreblyansky said...

It would be nice if Obama handled it the way he often handles budget negotiations: beginning with an offer they would certainly accept if they weren't insane, and will make us over here howl with betrayed rage, and then watching the pressure build on them when they reject it and moving to the left for his next proposal, until by the time they stop fighting they are stuck with something they really hate. For instance he could nominate that Republican Srinivasan first, then after he's instantly rejected and criticism starts to fall on vulnerable senators like Ayotte and Johnson, come back with a less acceptable nominee, etc.

mlbxxxxxx said...

The Rs have already made it clear that they are not going to act in good faith. They have, pretty much to a man and woman, declared their intent to obstruct the process. Therefore, Obama should end-run them with a recess appointment. I agree that he will not, but I see no downside for him if he did. If they still chose not to approve his nominee in spite of the fact that he/she is serving, well, the next president will get to choose a replacement while the Court would not have been crippled for a year or more.

Frankly, I think Obama owes it to the country to make a recess appointment. Not doing so, in the face of clear obstructionism, is a failure of leadership. We do not need the uncertainty that a year's worth of 4-4 decisions will bring on important issues.

However, I fully expect Obama to fail in his duty to his office and our country in a misbegotten attempt at good governance.

Unknown said...

Brother Pierce has one better - nominate Anita Hill and watch the fireworks replay from Thomas' skate through. I don't know if there is enough 5 star popcorn for that show.

Never Ben Better said...

Obama can't do a recess appointment. The GOP can and does use procedural tricks to keep Congress technically in session without a break, and the Supreme Court has upheld them on this.

BARAZION said...

When in Obama's two terms has it not been all out war?

Unknown said...

I think that the Democrats would be wise use Scalia's death, and the Repub reaction, as a wedge issue during the campaign. The Repubs cannot be trusted with running the country because they are fundamentally lawless. McConnell needs to be absolutely, and continually, excoriated in public as a vicious partisan who ignores fundamental constitutional obligations of his office. It can't be said enough. The pressure put on him should be unrelenting.

The same goes from Cruz, who is a pure theocrat, and should be called out as such. As for Trump, the message needs to be repeated, again and again, that a vote for him is a vote for a genuine authoritarian who neither knows, nor cares, about this country's constitution, and the fundamental rights of its citizens, much less civilized norms of governmental behavior. For heaven's sake, this scumbag openly advocates torture, as well as systematic religious and racial discrimination. I see no reason not to go totally Godwin on the sonofabitch; he's the genuine article.

It really is time to take the gloves off in dealing with these people, if we want to preserve the possibility of representative government. The Republicans should be painted exactly as they are: an existential threat to our form of government.

Unknown said...

Mark Kleiman at Washington Monthly, has an evil suggestion: Recess Appointment: Part Two

The Senate will functionally be in recess during most of the election season, but continue to maintain the fiction that it's still in session, in order to forestall recess appointments. All a Democrat has to do is raise a point of order, noting the lack of a quorum, and all the Republican senators will have to assemble in Washington to register their presence. Ten days without a quorum constitutes a recess, it seems, so all Harry Reid and perhaps Joe Biden have to do is show up, raise a point of order, and summon the tributes. Over and over.